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Gender Implications of Pre-Nuptial Agreements

by Guest Author 08/12/2024

written by Guest Author

Author: Sayan Dasgupta

The sporadic distribution of persons, identity, culture, language has always been a part of the Indic civilization. This heterogeneity implied a myriad of personal laws; both codified and uncodified. Where such diversity is engrained in the social fabric of India, such diversity could also mean plurality of gendered injustices. Delhi High Court on this note grappled and encouraged the Centre to act on the idea of Uniform Civil Code such that it doesn’t “remain a mere hope”. However, the Courts’ activism is not recent. Kerala HC in Agnes Alias Kunjumol v. Regeena Thomas also highlighted the need for such a legislation for subsistence of marital institution.

The tapestry of Bharat and its consonance with debate of UCC is a stuck gramophone. Where one camp argues for uniformity and homogeneity of personal laws, another camp argues that it would bludgeon religious freedom. However, a fruitful discourse is impossible without a substance of the legislation or a bill to test the veracity of either of those camps. Notwithstanding that, what can be subjected to a litmus test is the Goan Uniform Civil Code which has been lauded by the former Chief Justice of India. The Portuguese Civil Code, 1867 has several peculiarities, gross gendered inequalities, and notions of cis-gendered male heteronormative superiority. To no extent can it be called uniform or civil. Nonetheless, a particular peculiarity that catches attention which is invisible in the Indian jurisprudence of personal laws finds home in the Goan UCC- pre-nuptial agreements.

Pre-nuptial agreements or “Ante-nuptial Conventions” as provided in Section V of the Code are agreements entered into by spouses to stipulate their assets for the purposes of protecting their wealth from the ‘economically inferior’ spouse. The general matrimonial sphere of India finds such agreements as void but may lend an evidentiary status. The Goan UCC contrarily finds such agreements valid as long as they are not in contravention with the Code and are recorded by way of a public deed (Article 1097 of the Code). The ensemble attempts to displace the state law with the contractual terms agreed upon in the event of divorce or dissolution by the death of a spouse. This practice is commonplace in the western legal system. In lieu of such an agreement, there is an obvious waiver of protections ordained by the state laws or customary practices.

The concept of pre-nuptial agreements is not alien to India. One of the first cases recording such a reality was the case of Hamidunnessa Biwi v. Zohiruddin Sheikh, (1890) and Tekait Mon Mohini Jemadai v. Basant Kumar Singh, (1901) where the Courts held agreements were invalid on grounds of public policy. However, there is a contrarian position held in cases like Nawab Khwaja Md. Khan v. Nawab Husaini Begam, (1910) where the Court found such agreements as valid and good in law. Section 40 of the Divorce Act, 1869 which governs the dissolution of Christian marriages requires the Court to look into the existence of any such pre-nuptial agreements. In any case, such validity of the agreement was not accorded to Hindu marriages where marriage isn’t viewed as a contractual relationship, but rather a sacrament. Supreme Court on several occasions has observed that “public policy” does not have an ascertainable form but rather, changes with the change in time. At this juncture, it becomes pertinent if the lens of public policy should change concerning pre-nuptial or post-nuptial agreements.

In the Indian matrimonial context, apart from the predilections of religion, customs, kinship, dowry, and class, the wealth distribution or the wealth gap always favours the man in the relationship putting the female counterpart in the ‘economically inferior’ and precarious position. More often than not, such economic vulnerability of the female counterpart is due to the lack of autonomy in matrimonial relations tinted with patriarchal notions of ‘bread-winners’ and ‘homemakers’ apart from the obvious lack of choices in making life decisions before or after marriage. Institutions of religion or customs do not seem to offer much reprieve either. Kerala HC set such a precedent in Ranjith P.C. v. Asha Nair where it was set that it is reasonable to expect household work and chores from a daughter-in-law.

Given this context parallel to societal import for the importance of marriage, women would always be, evidently, at a more vulnerable position. Since most pre-nuptial agreements are for wealth and asset protection in event of dissolution, they would always be in favour of the ‘economically superior’ spouse. Conventionally, that would be at the expense of the woman. It would always be the husband at a dominant position, given the interpretation to the husband’s position in the family unit; regardless of the financial situation to set the terms of the agreement and forgo the protection of laws and customs set in place. This adversely impacts the social and economic well-being of the woman in the relationship and contributes to financial vulnerability. Furthermore, it would also amplify the magnitude of the unequal distribution on the vectors of gender.

This sense of entitlement can be harkened back to the labour theory of value of Karl Marx. The doctrine simplistically argues that what is created by the labour of the person is to be owned by them due to the input of labour power. This was Marx’s blue-collar notion of work which now cannot be considered sound. What is pertinent herein is the feminist and the moral critique of the proposition which questions the narrow view of what is considered labour, power, and productivity. To analyse this, a divorce case of 1986 in New York can be taken into consideration. A man, who was pursuing his medical studies gets married to a woman in an arranged setting. As a commonly expected practice, the wife was expected to stay at home and take care of the household. While the wife carried out such duties, the husband was able to finish his education and build a successful practice of 14 years. Events occurred which resulted in a divorce. The husband argued that he does not owe anything to his wife considering his practice was built on independent labour power and participation in the market. The Court disagreeing held that the wife contributed value to his practice and thus, had ownership interests in his practice given her participation. The wife’s work was embedded in the successful medical practice. Thusly, she was awarded 40% interest in the medical practice as a divorce settlement.

Devaluation of a woman’s work in the household and entitlement of a man in the family over assets is the oldest, most sexist story of humankind. It is a story sewn so deep into the Indian social fabric that it seems and appears normal. It is the living embodiment of compelled subservience. In a marriage, especially in an Indian context, women are the minority in wealth holding, raising the balance of convenience in favour of men to negotiate and disenfranchise their spouses. Where superficially, it may seem like a move of empowerment, the ground reality screams a different story of exploitation. Sabina Martins, a women’s rights activist observed that “…women across religions being thrown out of their marital homes within months of marriage”. Adjunctively, the waiver of an equitable division of property, or “communion of assets” i.e., equal distribution of property leaves the woman at the mercy of her husband. The Government was recently considering the incorporation of such pre-nuptial agreements into personal laws for women empowerment. Whether such prerogative is right has been answered by the arguments abovementioned. The Courts, as the sole arbiter of truth, with the knowledge of historical injustices and jurisprudence must always consider gender as a variable, especially in the domain of marriage. A supposed reflection that such agreements could offer an ounce of equality is not sufficient cause for reconsideration of “public policy”. The terms of any premarital agreement will always echo the superior bargaining power and resources of the prospective husband.

Biography: Sayan Dasgupta is a 3rd-year law student pursuing a 5-year integrated degree of B.A., LL.B. with corporate honors. He takes a special interest in constitutional law and public policy. and can be reached via mail or at LinkedIn.

08/12/2024 0 comments 25 views

Dereliction Of The ‘Other Gender’: Deprivation Of Minor Male Sexual Assault Victims By The ‘Skin-Touch’ Doctrine

by Guest Author 08/12/2024

written by Guest Author

By Sayan Dasgupta

COVID-19 has been a fertile spawning field of sexual violence. Where some Courts have been deontological and acknowledging of this phenomenon, certain judgments act as a means of disenfranchisement of sexual violence victims. Bombay High Court in a recent judgment, in Satish v. State of Maharashtra has rendered an absurd interpretation of Protection of Children from Sexual Offences Act, 2012 [POCSO]. The accused was charged with Section 8 of POCSO read with Section 354 of Indian Penal Code along with Sections 342 and 363, for sexually assaulting a minor girl. The Bench acquitted the accused of sexual assault under POCSO while upholding conviction under the sexual assault charges under IPC on the rationale that there was lack of sexual intention on the part of accused to sexually assault the minor since there “was no direct physical contact, i.e., skin to skin” touch.

This verdict caused a huge uproar in the civil society and the legal fraternity alike causing the Supreme Court to stay the acquittal of the accused on the charge of Section 8 of POCSO. The judgment has rendered that mere groping would not amount to sexual assault under Section 7 of POCSO. Such an abhorrent interpretation prima facie trivializes not only sexual assault of female minors, but disproportionately excludes male minors from seeking justice.

The minor male victims of sexual abuse constitute a large majority in India. The Bench elucidated that mere groping over the clothes of the minor would not amount to sexual assault under Section 7 and 8 of POCSO. POCSO is inherently a gender-neutral legislation providing reprieve to minors of all genders. Section 7 provides that “whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.” The words “penis, anus” annotate protection to the male victims from sexual assault. However, the case establishing the ‘skin-touch’ doctrine has significantly narrowed the scope of application of the provision.

Adoption of this exclusionary doctrine would impact both female and male victims adversely, however, where the female victim could resort to relevant provisions of IPC, the male victim is left remediless. The provisions of sexual crimes under IPC are highly gendered protecting only the woman or the girl child disenfranchising the male victims of sexual violence. Furthermore, the doctrine places the onus of proof on the prosecution per contra to POCSO. Section 29 of POCSO reverses the burden of proof and presumes the offence has been committed or abetted by the accused. If the view purported by the Bombay High Court is considered, and if the prosecution fails to satisfy the onus, the female victim can have a recourse to relevant provisions of IPC, whereas on the contrary, the male victim cannot.

The ‘skin-touch’ doctrine categorically contradicts the Model Guidelines issued by Ministry of Women and Child Development under Section 39 of POCSO which provides that “almost every known form of sexual abuse against children as punishable”. Furthermore, the Delhi High Court in Rakesh v. State without even delving into the detail of disrobing of the victim dismissed the appeal holding that mere groping of the private parts of the victim with sexual intent amounts to sexual assault under Section 7 of POCSO. Conflicting this accurate interpretation, the heavy onus placed on the victim results in narrow application. Whereupon the female victims have an alternative remedy, the abusers of the male victim are left scot-free on committing the atrocity leaving a permanent scar on the well-being of the child survivor. Ergo, mere groping would amount to sexual assault of the female victim under Section 354 of IPC but would not be sexual assault of male victim, either under POCSO or IPC. The provisions governing sexual crimes in IPC are gynocentric and neither the legislative or the judiciary have displayed any intention to take affirmative step on making the sexual offences gender neutral, despite there being categorical recommendation by the 172^nd Law Commission Report and the Justice Verma Committee Report to make rape and other sexual offences gender neutral.

This inspires little to no confidence on the state functionaries with regard to gender justice. The ‘skin-touch’ doctrine creates a very real and alienating affect of male survivors wherein, groping over clothes would not amount to sexual assault. The lack of gender-neutral sexual offence laws and such interpretation is a clear dereliction of the male survivors.

08/12/2024 0 comments 27 views

A person of Pride- Joyita Mondal India’s first transgender Judge

by Guest Author 08/12/2024

written by Guest Author

By Muskan Rani

Achieving a position or being a first in any field would make anyone feel great, but no one sees the hardships faced to be the first.

Today we are talking about Joyita Mondal, a social changemaker, who broke all imposed norms of the society, by becoming India’s first transgender judge in India. Judge Mondal was born in a Hindu family in Kolkata,West Bengal.

She was biologically born with the body of a male, but growing up, she liked to dress like a girl. She had a hard time keeping this secret from everyone.

So she informed her parents that she has got a job in Dinajpur and left kolkata and moved to Siliguri in the year 2009.

In Dinajpur she started living her life the way she wanted to. She started wearing female clothes and started working as a hijra (eunuch) singing, dancing and so on.

On the other side she also started doing social work for the upliftment of her community. In the year of 2010 the National Election Commission added the category of ‘other’ in addition to male and female as gender identification to encourage transgender to register for voter cards.

Judge Mondal became first transgender to get voter card under category of “others” in Dinajpur. In the same year she started studying law.

She helped everyone who faced racial discrimination. Later she became founder of a NGO named “Dinajpur Notun Alo Society ” to help transgender of the same as well as different religions. At present the NGO is serving transgender community with more than 2000 transgender.

In the year of 2012, her NGO got a foreign project to provide legal aid to transgender community. Judge Mondal succeeded in giving legal aid to about 200 transgender. The work of her NGO and Judge Mondal was appreciated by the government. Later in 2015, Dinajpur Notun Alo Society built an old-age shelter house and helped many transgenders to make their Voter IDs.

In the year of 2017 the sub-divisional legal services committee of Islampur, Uttar Dinajpur district in West Bengal appointed her as a Judge.

Now she is serving as a judge but she never left her fight for Transgender community. She says “A handful of us becoming judges, principals won’t bring a change as long as transgenders are working as sex-workers and begging in trains. Individual successes mean nothing. Even if they don’t have much qualification, they can at least be appointed as Group D staff where physical labour is involved. I have not come from Kolkata to Uttar Dinajpur just for my fight. I cannot ignore my community because of whom I have reached this position. I would request the government to first start government jobs for transgenders so that our community gets dignified work. I consider work of coolies, peons or other Group D work as dignified”

Her journey of becoming India’s first transgender judge was not easy but she never gave up. She kept on working for her rights and also for her community. She is a person, we should all br so proud of.

08/12/2024 0 comments 34 views

THE SUPREME COURT OF INDIA NEEDS MORE WOMEN JUDGES

by Guest Author 08/12/2024

written by Guest Author

Lokendra Malik, Advocate, Supreme Court of India

The Supreme Court of India has a sanctioned strength of 34 judges including the Chief Justice of India but currently, it has only one woman judge Justice Indira Banerjee. As of now, the Supreme Court has five vacancies of judges and a few more judges will be retired by the end of this year. Surprisingly, in seventy years of existence, only eight women judges have graced the bench of the Supreme Court of India. This is not good news from the gender justice point of view as half of our population is not getting reasonable representation in the apex judicial tribunal of the country. More women judges should be appointed at all levels in the judiciary. Justice Fathima Beevi was the first woman judge of the Supreme Court of India who was appointed in 1989. The second woman judge of the Supreme Court was Justice Sujata V. Manohar who was appointed in 1994. The third woman judge of the Supreme Court, Justice Ruma Pal came in the year 2000. After her retirement, it was Justice Gyan Sudha Mishra who came to the Supreme Court in 2010. In 2011, Justice Ranjana Prakash Desai was appointed to the Supreme Court. Justice Bhanumathi was elevated to the Supreme Court in 2014. Justices Indu Malhotra and Indira Banerjee came to the Supreme Court in 2018. All these judges have made a wonderful contribution to the Indian judicial system by delivering hundreds of judgments.
Many legal scholars, lawyers, and sociologists have rightly expressed their concerns about the invisible representation of women in the higher judiciary particularly the Supreme Court of India. It is widely believed that India needs more women judges in the constitutional courts. But unfortunately, no effective steps seem to have been taken by the judge-makers to remove this gender gap until now. For this lapse, both the government and the judiciary are responsible. Both of them have failed to promote gender equality in the judiciary. Before 1993, it was the Union Executive that had a very powerful say in judicial appointments but it ignored the representation of women on the top bench. In the Supreme Court, the first woman judge was appointed in 1989. After 1993, the Supreme Court collegium is the actual judge-maker in the country. Sadly, even the Supreme Court collegium has also ignored the women in judicial appointments in the Supreme Court and High Courts. The collegium should not miss a great opportunity to bring more women judges in the constitutional courts that could provide them timely chances to lead the Supreme Court of India one day. The male-dominated Supreme Court collegium is expected to have a more liberal and generous approach in terms of making judicial appointments of women in the higher judiciary. Unfortunately, India could not have a woman Chief Justice even after seven decades of the Supreme Court’s establishment. The judge-makers should think about this issue seriously. It all depends on their willpower and commitment to the cause of women’s empowerment in the judicial branch that holds a very significant position in our constitutional scheme.

Some sitting judges of the Supreme Court have also raised their concerns about the inadequate representation of women in the Supreme Court on a few occasions. A few weeks ago, while speaking on the occasion of a farewell ceremony organized by the Supreme Court Young Lawyers Forum on March 13 to honour Justice Indu Malhotra, Supreme Court judge Dr. D. Y. Chandrachud said about this issue: “Justice Malhotra’s retirement means that the Supreme Court now has only one female judge on the bench. As an institution, I find that this is a deeply worrying fact and must promptly receive serious introspection”. Further he went on to say that “as an institution whose decision shape and impact lives of everyday Indian, we must do better. We must ensure the diversity of our country find reflection in making up of our court. Intrinsically having a more diverse judiciary is an end, a goal in itself and worth pursuing in its own sake. Instrumentally, having a more diverse judiciary, ensured diversity of perspectives is fairly considered, instils high degree of public confidence.” Justice Chandrachud’s remarks deserve serious consideration by judge-makers. The Supreme Court collegium should consider it from a larger perspective that could ensure a fair representation of women on the bench of the top court. It will be in the collective interests of the judiciary if the collegium takes care of diversity on the bench which is a must to ensure justice to the people.

Notably, the Supreme Court collegium led by Chief Justice Bobde could not recommend even a single appointment to the Supreme Court due to the lack of consensus among the members of the collegium. The collegium led by him also faced some other issues like geographical and seniority considerations in choosing judges for the top court. This is not the first time that the Supreme Court collegium faced this kind of situation in selecting judges. Even in the past, the collegium has such challenges and made selections by relaxing the seniority norms. There are precedents where judges have been elevated to the top court by ignoring the seniority norms and High Court representations. The judgments of the Supreme Court particularly its 1999 ruling also allow the departure from seniority norms in judicial appointments. There is no hard and fast rule of seniority that prohibits the collegium from elevating junior judges to the Supreme Court. Some brilliant women judges of the High Courts may be considered for the Supreme Court judgeship by relaxing the seniority norms so that they could get an opportunity to lead the Supreme Court in the future. This can be an extraordinary relaxation to ensure gender balance on the bench of the top court. The sky will not fall if the collegium relaxes the seniority constraints to appoint brilliant women lawyers and judges to the top court. In addition to this, some brilliant women legal academics and lawyers may also be considered for the judgeship in the Supreme Court. A few lawyers were directly elevated to the Apex Court during the last few years. The Supreme Court has many brilliant lawyers who can be considered for the judgeship in the top court. A gender balance in the higher judiciary is the need of the hour. The collegium led by the new CJI Ramana may consider all these issues.

Unfortunately, no law professor has ever been appointed as a judge in the Supreme Court despite the availability of constitutional provisions to this effect under Article 124(3)(c) from the category of ‘distinguished jurist’. Has not the time come when the Supreme Court collegium should activate this dormant constitutional provision? India has many brilliant professors who have made a wonderful contribution to the legal system and they truly deserve this honour. A renowned legal academic can be appointed as a judge in the Supreme Court to include the legal academia in the judicial adjudication process? This was the dream of our great founding fathers who were inspired by some foreign jurisdictions that had appointed eminent law professors as judges in their top courts. Professor Felix Frankfurter of Harvard Law School was directly elevated to the U.S. Supreme Court. The Supreme Court collegium has all opportunities to diversify the bench of the apex court to make the judiciary more inclusive. It should not delay this noble work more. Needless to say, the collegium is the real judge-maker in the current constitutional practice and the central government is bound to implement its recommendations. It has all powers to diversify the Indian judiciary. Now after the judgment of the Supreme Court in the case of M/S P.L.R. Projects Ltd. v. Mahanadi Coalfields Ltd., the Central Government cannot delay judicial appointments as the Court has rightly fixed a timeline for the government to clear appointment of judges within a prescribed time. The collegium may consider ensuring gender justice to the women in the country given the national commitment to the cause of women’s empowerment in the judiciary.

The Supreme Court decides many important issues relating to women which can be properly adjudicated only by the women judges. Not only this, but the presence of women judges in the Supreme Court also enhances the faith of the womanhood in the supreme judicial tribunal lays down the law of the land. The new Chief Justice of India N. V. Ramana may convince his colleagues to give more representation to the women in the higher judiciary by adopting a more liberal approach. If possible, the new CJI may also include a woman judge in the decision-making process of the Supreme Court collegium. The Supreme Court of India has always stood for the cause of women’s empowerment. It should encourage the women lawyers and judges to come forward to join the apex court. The top court should have at least 5-6 women judges from different communities and parts of the country. Many brilliant women lawyers and judges are available in the Supreme Court and the High Courts who can make a great contribution if timely opportunities are given to them. Some of them may also become the Chief Justice of India one day. There is a severe shortage of women in the Supreme Court and High Courts also. This is the time when the Supreme Court collegium should give adequate representation to the women in the higher judiciary.

08/12/2024 0 comments 34 views

In search of the first woman Chief Justice of India

by Guest Author 08/12/2024

written by Guest Author

Even after 70 years of its existence, the top court has not had a woman Chief Justice of India.

Lokendra Malik
First Published on Bar and Bench:
28 Mar, 2021 , 5:38 am

Though justice is usually portrayed as a woman, it has in general been embodied by men. The Supreme Court of India is also mainly a male-dominated institution. It has a strength of 34 judges, including the Chief Justice of India, but it has only one woman judge after the recent retirement of Justice Indu Malhotra.

There have been very few women judges in the Supreme Court up till now. Justice Fathima Beevi was the first woman judge of the Supreme Court of India, appointed in 1989. The second woman judge was Justice Sujata V Manohar, who was elevated to the Supreme Court in 1994. The third woman judge, Justice Ruma Pal, came to the Supreme Court in the year 2000. After her retirement, it was Justice Gyan Sudha Mishra who came to the Supreme Court in 2010. In 2011, Justice Ranjana Prakash Desai was appointed to the Supreme Court. Justice R Banumathi was elevated to the Supreme Court in 2014. Justices Indu Malhotra and Indira Banerjee, who will retire next year, came to the Supreme Court in 2018. All these women judges have made great contributions to the Indian judicial system by delivering judgments on a variety of significant issues relating to public, private law, and governance.

Even after 70 years of its existence, the top court has not had a woman Chief Justice of India. The reason is very simple. First, a lack of willpower on the part of judge-makers, and second, the formality of seniority convention plays a very significant role in making the Chief Justice of India. No lady judge reaches that zone of consideration because of the lack of seniority. For reaching the top position in the apex court, a judge needs a fairly long tenure of eight or nine years.

Only two times was this seniority convention breached – in 1973 and 1977 during the tenure of Prime Minister Mrs. Indira Gandhi – when junior judges were appointed to the office of the Chief Justice of India by superseding their seniors. The legal fraternity had rightly criticized such judicial supersessions. But thereafter, the seniority convention has been followed consistently in the appointment of the Chief Justice of India and there does not seem to be any apprehension of its dilution in the future as the Supreme Court has also approved this seniority convention in the Second Judges’ case in 1993.

The Supreme Court Collegium may consider elevating a woman judge who can have a tenure long enough to become the Chief Justice of India as per the seniority convention. This is a much-needed step toward the cause of women’s empowerment in the judiciary. Bypassing the seniority convention is neither possible nor desirable as judicial supersessions cause irreparable damage to judicial independence and give unwanted opportunity to the executive to control the judiciary. The timely appointment of woman judges so that they have long tenures is the best solution. And for this purpose, the Supreme Court collegium should take the initiative.

Post-1993, the judiciary has taken the power to appoint judges from the executive through constitutional interpretation, in the larger interests of judicial independence. Before 1993, the Prime Minister and the Union Law Minister were very powerful in making judicial appointments. They were the real judge-makers in the country. But now they have lost such influence. Under the existing practice, the judges of the Supreme Court are appointed by the President of India on the recommendation of the Supreme Court Collegium, which is headed by the Chief Justice of India and consists of four of his senior-most colleagues. This Collegium is the actual judge-maker and the President, Prime Minister, and the Union Law Minister have little say in judicial appointments.

However, the Central government has some scope to delay judicial appointments in some cases. The decisions of the Collegium are made by consensus. If two or more judges oppose the Chief Justice’s proposals, the Collegium cannot finalize the names and the President is also not bound to accept such recommendations. This exercise is done to eliminate the sole authority of the Chief Justice of India in judicial appointments. Now the CJI has to build a consensus among all his colleagues and finalize the names accordingly. He cannot ignore their views at all.

The President of India is bound to act as per the recommendation of the Collegium if it decides the names by consensus. However, the President, as aided and advised by the Prime Minister, has an option to return the recommendation of the Collegium once for its reconsideration. Thereafter, the President is bound to accept the Collegium’s recommendation if it reiterates its view. In other words, the Collegium has the final say in judicial appointments.

The present Supreme Court Collegium is headed by Chief Justice SA Bobde. Its other members are Justices NV Ramana, RF Nariman, UU Lalit, and AM Khanwilkar. As of now, the Supreme Court has four vacancies and five more judges will retire by the end of this year. Despite this, the Collegium headed by Chief Justice Bobde has not made even a single appointment to the Supreme Court. As per media reports, there is some deadlock in the Collegium, which has not reached a consensus on Chief Justices of High Courts who are eligible for elevation to the top court as per the seniority rule.

Chief Justice Bobde will retire next month. The last time a Chief Justice of India retired without recommending a single appointment to the Supreme Court was in 2015 (during the tenure of Chief Justice HL Dattu), when there was an unprecedented deadlock between the Central government and the judiciary on the issue of the National Judicial Appointments Commission (NJAC). After Chief Justice Bobde’s retirement, Justice N V Ramana is likely to become the Chief Justice of India as per the order of seniority.

There is no dearth of brilliant women High Court judges and lawyers in the country. There are many brilliant women lawyers and judges who, if elevated soon to the top court, can become the Chief Justice of India after a few years as per the seniority rule. The biggest issue is to include them in the seniority circle so that they could come to the top after a few years. I think this is a great opportunity for the Collegium to give India its first woman Chief Justice of the Supreme Court. It is not a difficult task. It requires strong commitment to the cause of women’s empowerment in the judiciary.

In addition to this, the Supreme Court needs more women judges also. There should be at least four to five women judges in the Supreme Court. The Court decides many important issues which can be properly adjudicated with the help of a woman judge’s perspective. Some brilliant women lawyers can also be considered for the judgeship in the top court.

Justice Indu Malhotra is the first woman to be directly elevated from the Bar. This trend of making appointments from the Bar needs to be continued in the future also. Some brilliant legal academics can also be considered for judgeship in the Supreme Court, given the constitutional provision of appointments of ‘distinguished jurists’ to the top court.

When it comes to the question of appointment of judges to the Supreme Court from the High Courts, seniority and regional representation are the major criteria that the Collegium considers. But there have been instances where judges have been directly elevated to the Supreme Court by relaxing the seniority norm. It is not rocket science. If senior women judges are not available, there are no written rules that stop the Collegium from appointing a High Court judge or a practicing lawyer to the Supreme Court. Ultimately, the final choice of judges depends on consensus within the Collegium. If all the collegium members decide that it is time to recommend a woman judge’s name for the Supreme Court judgeship, they can do so and a woman judge can be appointed to the Supreme Court at this time.

So, all this depends on the will power of the Collegium, which has conclusive power in judicial appointments. There is no reason to assume that the Central government will not appreciate this idea, which promotes women’s empowerment. So, now the ball is in the Collegium’s court.

https://t.co/81X2xLvN0d

08/12/2024 0 comments 22 views

The Role of the Courts and Law Enforcement Agencies in eliminating Judicial Stereotyping and Gender Bias

by Shivangi Sharma 08/12/2024

written by Shivangi Sharma

Shivangi Sharma

Madhya Pradesh High Court in July 2020 (In Vikram v. The State of Madhya Pradesh in MCRC 23350/2020) while allowing a bail application in a sexual offence case put a condition on the accused to visit the complainant at her house along with his wife and get Rakhi tied and promising the complainant to protect her to the best of his ability for all times to come. The Supreme Court in an SLP filed against this order in Aparna Bhat v. State of Madhya Pradesh has passed a beautifully worded judgment pointing out the deeply rooted sexism in the judiciary and sincere lack of gender sensitivity amongst the judges.

Indian Judiciary although with accolades for many transformative judgments has often been disappointing when it comes to gender specific cases. A report by SamshBoard, a New-Delhi and Paris-based non-profit, stated that female representation in the Indian judiciary is dismal with women accounting for only 7 percent of the strength of High Court judges, and that’s keeping sexism alive in the institution. The report was released after a few days of passing of US Supreme Court Justice Ruth Bader Ginsburg, popularly known as the notorious RBG. RBG was the second ever female justice of the US Supreme Court and when asked “when will there be enough women in the Supreme Court?”, she answered “when there are nine”. But India even today is far away from that dream of “enough” female representation in judiciary with only one sitting female justice against the strength of 34 after the retirement of justice Indu Malhotra last week.

Negative impact of this lack of representation is well reflected in the ignorant conduct of judges. The present Chief Justice of India during a bail hearing in sexual assault case of a minor asked the lawyer of the accused “Will you marry her?” he further added “We are not forcing you to marry. Let us know if you will. Otherwise you will say we are forcing you to marry”. As utterly shocking it seems that a question of marriage is coming up in a case of repeated sexual assault, it is unfortunately quite common in cases of rape especially the ones under the false pretext of marriage. The term “consent” is not very well understood by the judicial system. Consent for any physical activity should be specific, informed, explicit, enthusiastic and freely given without any kind of influence. But sadly, the age-old victim blaming practices are still very much alive in the minds of our judges. Take for example a bail order passed by Karnartaka High Court in June 2020 (Rakesh B. v. State of Karnataka Crl. P. No. 2427/2020) in another sexual assault case. The judge remarked on survivor’s conduct that
“c) nothing is mentioned by the complainant as to why she went to her office at night, that is, at 11 PM; she has also not objected to consuming drinks with the petitioner and allowing him to stay with her till morning; the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished;”

This highly problematic remark by a High Court judge although later expunged after faced with tons of criticism by the public and the bar, opens our eyes to the fact that the stereotype of a chaste “Indian woman” and patriarchal gender roles are still cemented in the mindset of people in authority. Recently sworn in as Uttarakhand Chief Minister Tirath Singh Rawat too in an event remarked that he is shocked to see women in ripped jeans. What message they are sending to society and what values they are giving to their own kids. After facing a lot of backlash on the same, CM’s wife in a classic Phyllis Schalfly manner came in his support saying that his husband’s statement is taken out of context and his intentions were to say that it is women’s responsibility to save our cultural heritage. Well it is a whole another point of discussion about the distorted image of our cultural heritage painted by brahmanical patriarchy but the bottom line is, it is high time that people in judiciary and other authoritative positions be properly sensitized on gender and its intersectionality.

It goes without saying that the transparent gender gap in the judiciary is responsible for furthering patriarchal notions which are reflected very clearly in judicial orders. Since 1950, the Supreme Court has had only eight female judges out of the total number 239 and has never seen a woman Chief Justice of India, as recently highlighted by various national news forums. There had only been two all-women Benches in the Supreme Court since its establishment in the 1950. The presence of diversity is quintessential to legitimacy of the judiciary. An institution that has a duty to safeguard the rights of the people needs to understand their various identities and social issues attached to them. People from marginalised communities, of different gender identities and sexual orientation barely see any representation from their folks and are at the behest of people (read cis-het men) from privileged backgrounds to understand and protect their interests. Ravindra Bhat J. in paragraph 35 of the Aparna Bhat judgment (Supra) refers to Simone Cusack’s paper on ‘Eliminating Judicial Stereotyping’ extracted below:
“Judicial Stereotyping refers to the practice of judges ascribing to an individual specific attributes, characteristics or roles by reason only of her or his membership in a particular social group (e.g. women). It is used, also, to refer to the practice of judges perpetuating harmful stereotypes through their failure to challenge them, for example by lower courts or parties to legal proceedings. Stereotyping excludes any individualized consideration of, or investigation into, a person’s actual circumstances and their needs or abilities.”
It looks like the Supreme Court is finally becoming more self-aware of the judiciary’s gender bias and is taking a step to eliminate the same.

The condition to tie bail to the accused of sexual offence by the complainant breaks the very first rule in the book of protection of survivors, i.e. breaking the contact between the perpetrator and the survivor. The ideal image of a sexual assault survivor is harmful to the actual survivors who do not fit in that image and are further subjected to victim blaming and character assassination. Noting down the “Nature of the Beast” Supreme court ruled that courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order and passed seven key directions which are needed to be adhered to by courts while passing bail orders in cases of sexual offences. Further, with regard to training and sensitization of judges and lawyers, including public prosecutors, the court mandated that a module on gender sensitization be included, as part of the foundational training of every judge. This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny. The court also instructed the Bar Council of India (BCI) to consult subject experts and circulate a paper for discussion with law faculties and colleges/universities in regard to courses that should be taught at the undergraduate level, in the LL.B. program and include question pertaining to sexual offences and gender sensitization in All India Bar Exam.

The Indian Judicial System has a long way to go to achieve gender equality but this judgment certainly paves the path in the right direction.

08/12/2024 0 comments 27 views

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